What the Law says

Information relates to English law and is correct as of 31/08/2016.

Who decides what treatment / care to offer?

This is up to professional assessment of needs, clinical appropriateness and, inevitably, competing demands for finite resources. An adult patient with mental capacity to make all their own decisions cannot require a particular treatment or care package to be offered by the NHS or social care – it is not their…

The need for consent

Valid consent for treatment or care is essential, and without this the professionals delivering that treatment or care could be committing a criminal offence (assault or battery), or expose themselves or their organisation to regulatory sanctions or compensation claims…

Who decides what treatment / care to take – For children (up to age 18)?

As a child grows up, the law anticipates that in time they develop the understanding and maturity to be able to make some decisions about treatment or care for themselves (this is called “Gillick” or “Fraser” competence, after a case in which a court rejected a mother’s claim that her daughters aged under 16 should not be able to access contraceptive advice and treatment without her being told)…

Mental Capacity Act

For decisions about health and welfare, the MCA applies to everyone over the age of 16 years (it can apply to younger people for property and financial decisions). It provides a legal framework for making decisions where a person cannot give consent for themselves…

Who is the best interests decision maker?

For day to day decisions about care or activities of daily life, it is likely to be the person’s primary carer. (This will often be the parent(s) who may have already cared for that young adult all their lives making decisions under parental responsibility. But from the age of 16, this is governed by the MCA, and not a right under parental responsibility)…

Collaborative decision making

However, “best interests” decision making should always be collaborative. Whoever is the best interests decision maker, there is an obligation in the MCA to consult “others engaged in caring for [the patient] or interested in their welfare” about best interests, and in particular to make sure that the decision maker is…

Advanced Decisions, Attorneys and Deputies

Where a person has capacity for a decision about specific medical treatment now, they can make an Advance Decision to Refuse Treatment in future, to be applied if and when they have lost capacity. There may be formal requirements depending on the kind of treatment, and it is prudent to get legal advice…

Restrictions and deprivation of liberty

For some patients who lack capacity to consent, their level of need can be such that the treatment or care package is very invasive, restrictive or intrusive. This may be the right thing to do, in their best interests, but increasing levels of restriction require both greater justification by reference to the harm that is avoided, as a matter of…